Cappuccio to Argue Brand X Case

Paul Cappuccio -- Time Warner Inc.’s top lawyer, who worked for two Supreme Court justices -- will argue cable’s cause in a pending Supreme Court case likely to decide whether cable operators need to share their broadband-data networks with rivals.

The National Cable & Telecommunications Association and the Bush administration want the high court to strike down a lower-court ruling that the Federal Communications Commission could not classify cable-modem service as an unregulated information service.

The lower court -- a panel of the U.S. Court of Appeals for the Ninth Circuit -- held that cable’s data service was a telecommunications service subject to open-access rules unless the FCC decided to forbear from imposing them.

In turning to Cappuccio, the NCTA has selected a lawyer who knows the high court well. He was a clerk for both Justices Antonin Scalia and Anthony Kennedy in the late 1980s. He was also a clerk for Ninth Circuit Judge Alex Kozinski, who did not serve on the three-judge panel that decided the case, Brand X Internet Services vs. FCC.

An NCTA spokesman Friday confirmed Cappuccio’s selection.

Oral argument before the Supreme Court is tentatively scheduled for March 23. The NCTA’s initial brief is due Jan. 18.

“Paul is an unusually talented lawyer. He has a very keen grasp of what moves the justices,” said Edward Lazarus, a former Supreme Court clerk now in private practice. “It’s an excellent choice for them.”

But Cappuccio’s selection is a bit ironic: He was America Online Inc.’s senior vice president and general counsel from 1999-2001, a period when AOL chairman and CEO Steve Case was urging the FCC to require cable to open its data networks to AOL under rules that Time Warner now wants the Supreme Court effectively to block in the Brand X case.